Monday, January 02, 2006

Presidential signing statements

Fantasy Life - Why this didn't really work

WaPo explains that when Alito was with the Justice Department, he had this way cool idea for increasing presidential power:

In the 1980s, the Reagan administration, like other White Houses before and after, chafed at the reality that Congress's reach on the meaning of laws extends beyond the words of statutes passed on Capitol Hill. Judges may turn to the trail of statements lawmakers left behind in the Congressional Record when trying to glean the intent behind a law. The White House left no comparable record.

In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy for changing that. It laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law.

The Reagan administration popularized the use of such statements and subsequent administrations continued the practice. (The courts have yet to give them much weight, though.)
There's a reason the courts haven't given them much weight.

The Constitution says:
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
But what about the role of the President?
Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it.
In other words, the President may only approve, or disapprove, what Congress has done.

(In fact, when they passed a law allowing Presidents to pick and choose what to approve -- line-item veto -- it was struck as unconstitutional.)

But if the President is just going to approve, or disapprove, Congress's actions, then the only relevant question when interpreting a law is what Congress did. The President can offer his interpretation of Congress's actions, but the President would be doing so based upon the exact same "evidence" of congressional intent that courts use to interpret statutes -- legislative history, text of the statute itself, etc. If that's the case, there's no reason to pay any attention to the President's independent statement of what the law means; the President is in no better position to understand what Congress did than the courts are.

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